The Eric Garner Homicide -- A Crime? No

Eric Garner paid with his life for making a simple mistake: He played street lawyer when officers tried to arrest him. The time and place to dispute facts with a cop is not on the street. It is in a courtroom. Resist an officer trying to arrest you, and you may well end up injured, or even dead.

Store owners on Staten Island had complained to local police that Garner was selling individual cigarettes, known as loosies, in front of their shops. Apparently, that’s against the law. It may well be a silly law, but it is a law that is on the books.

Daniel Pantaleo, a young police officer, approached Garner with other officers. You can watch Garner protest on YouTube. “I did not sell nothing,” he says, as he backs away. Pantaleo was about to arrest him.

Police officers need not witness a crime take place to make an arrest. When it comes to minor offenses, they can arrest a person on the speedy information of others. In this case, it appears as if store owners complained about Garner, and officers, in reliance on the store owners, sought to arrest him.

Obviously, I have no idea whether Garner sold cigarettes or not. Most likely, the cops simply relied upon the accusations of others when they approached Garner. All that was necessary to detain him was a reasonable suspicion, more than a hunch, that he had broken the law. To arrest him, they need only conclude that there was a reasonable belief he broke the law.

Garner had every right to argue with the police, but the law requires all of us to submit to officers when they try to arrest us. If we resist, they are entitled to use reasonable force to overcome our resistance. It is generally foolish to pick a fight with a cop: not only are they trained in the use of force, they also come equipped with lethal tools to use to assure they win any confrontation.

In the Garner case, officers used what are called “take-down” holds to bring him down. They are trained to do that. You can see officers reach for his hands to make sure he did not swing them at him. Another officer got behind Garner, and ended up with his arm around Garner’s neck.

Then Garner was on all fours, and still four officers could not get him into a position in which they could handcuff him. Officers are trained in such situations to use the ground as leverage. That is precisely what they did in this instance, seeking to pin him so that they could get his hands behind his back.

As the officers and Garner struggle on the ground, Garner gasped: “I can’t breathe” eleven times. You can hear the officers telling him to put his hands behind his back. He doesn’t, and perhaps cannot, comply.

One officer, Pantaleo, ended up with his arm around Garner’s neck, in a choke hold prohibited by the New York Police Department.

I’ve watched the video of the take down a dozen times, and, candidly, it looks just like any number of arrests I’ve seen. Police with suspicion confront a man to question him or arrest him. The man objects, and gets angry. The officers decide to take him into custody. The man does not comply with the officers’ commands, so they use force. White, black, Hispanic, the results are always the same — the struggler loses and is sometimes injured or killed.

An autopsy of Garner revealed that he died due to compression, or pressure, on his neck and chest. Among the contributing factors was the fact that he suffered from asthma and was obese; he also suffered from hypertensive cardiovascular disease. There’s no reason to suspect the officers knew of his medical history; the law does not require them to know it.

The police killed Eric Garner. This is a homicide, plain and simple.

But it is a long leap to go from homicide to a crime, and the Staten Island grand jury had good reason to refuse to indict, or charge, Pantaleo with a crime. Homicide comes in several shapes and forms.

To find probable cause for intentional homicide, the grand jury would have had to conclude that Pantaleo had the conscious objective, a synonym for specific intent, to kill Garner. The videotape reflects a struggle, not an execution.

To find a reasonable basis to believe there was a reckless homicide, the grand jury would have had to conclude that Pantaleo was aware of a serious risk of injury and proceeded nonetheless. This is a closer call. Choke holds are prohibited because they do cause a serious risk of injury when pressure is applied on the carotid artery.

But what should the officers have done? Should they have walked away from Garner because he protested? That’s a standard with ridiculous consequences. The place to say the police got it wrong is in a courtroom. Not on the streets.

To proceed on negligent homicide, the grand jury would have to conclude the Pantaleo engaged in conduct that was a gross departure from the standard of care. This garden variety arrest of a man in response to garden variety criminal allegations simply isn’t shocking to those schooled in the business of evaluating police conduct.

Pantaleo most likely will face police discipline for using poor tactical judgment in how he helped take Garner to the ground. But that does not mean the take down itself was without justification. It was justified under current law, and it happens daily on streets throughout the United States.

Efforts to transform the Garner homicide into a race case are irresponsible.

We need to have a serious discussion about race in the United States. And the manner in which communities, particularly communities of color, are policed is often deeply troubling. But Eric Garner was everyman, not just a black man, in his deadly struggle.

The death of Eric Garner is not an example of racial injustice. It’s a tragic consequence of a man who refused to take his grievance to a courtroom, where it could be sorted out without violence. He paid for that mistake with his life. That does not make him a martyr.

Related topics: Journal Register Columns
Comments (3)
Posted on January 31, 2015 at 9:02 am by onewhoknows
Garner homicide
The Garner incident was an indictable offense, pure and simple. Take it from this former prosecutor. Not even submit manslaughter to the Grand Jury? Then there are rightful protests over this injustice, including the Mayor's appropriate support for the incident to be reviewed by the Justice Department for a civil rights violation. That's followed by the police and police union pushing back at the Mayor to show that they disagree with him, now don't respect him and try to make it seem like he has a political problem? Really? Most cops don't live in the city! ( I don't count racist, segregated Staen Island). They don't vote there. They make their living there with the taxpayer funds from the people that they serve and then they return to their ranches upstate in Monroe, NY or across the river in Putnam County and rag on the people they serve. Despicable. They should try getting decent wage paying jobs where they live and see what they come up with. While the homicide review is concluded on the Staten Island end, this incident serves to remind us about the attitude that many white police officers have towards the people they serve and the NEED TO PASS A RESIDENCY LAW to ensure that they live within the boundaries of NYC, which will foster respect for those residents.

Posted on December 7, 2014 at 9:39 am by Ray
Eric Gardner
The Eric Garner Homicide -- A Crime? YES.
Norman, your editorial on the Garner death is 99% correct and as usual your observations are prescient. However, in this case there is one factor you appear to gloss over. The heart of this case revolves around Garner resisting arrest – so the issue is; Did the actions of Mr. Garner rise to resisting arrest? I suggest they did not and his actions illustrate a conflict between the first amendment right of free speech and the so called commands of police. My view of the video was that Garner was simply vocalizing his objection to a perceived harassment by police. I did not view any threatening action of his part. In my judgment the cop who jumped on him demonstrated a lack of maturity/judgment, not really sure of the word I want – but – his actions were premature, unnecessary and excessive and would support a verdict of negligent homocide. I believe another minute of conversation with Garner would have won him over to a compliant arrest.
Many police officers have the belief that when they issue an “order” instantaneous compliance is necessary – this is often referred to as a command and confront mentality. Police officers need to be trained and sensitive to public perception of official interactions with the police. Often people are scared, confused and need a minute or two to vocalize their surprise at the situation they find themselves in. In no other place in society are we expected to immediately “freeze” when mere words are spoken – why should police be an exception?
If Gardner had later complied and if the police still charged him with resisting arrest, it is my judgment those charges would be dismissed as he was simply talking.

Posted on December 6, 2014 at 9:17 am by Marshall Frank
Eric Garner arrest
Norm - Excellent wrap-up. I'm a 30-year retired Miami-dade cop, who has seen many usch confrontations, none of which were racially motivated.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


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